Browne et Al v Montserrat Electricity Services Ltd et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Saunders, J.
• Judgment Date: 29 January 1997
• Neutral Citation: MS 1997 HC 1
• Docket Number: Civil Suit NO. 126 of 1994
• Date: 29 January 1997

Browne et al

and

Montserrat Electricity Services Ltd et al

Saunders, J.

Civil Suit NO. 126 of 1994

High Court

Tort - Claim for damages for injuries suffered as a result of a motor collision with the defendants — Defendant's servant and driver of the vehicle was convicted of driving without due care and attention contrary to section 55 of the Vehicles and Road Traffic Ordinance, 1959 — Plaintiff sought to rely on conviction on proof as contributory negligence — Court found that the defendant was negligent but that the plaintiff was contributorily negligent in failing to wear the seat belt — Froom v. Butcher [1975] 3 All E.R 520 considered — Damages reduced to 20% as a consequence and a further 10% as a result of plaintiff's speed.

1 Saunders, J. It was bright and sunny in Plymouth that afternoon of Friday 10th May, 1991. Just before 4.0OPM, James Browne, a Customs Guard, was driving along Lover's Lane from North to South in his Mazda motor car. The vehicle had been bought by him, brand new, about eighteen months previously at a cost of $42,000.00 Travelling with Mr. Browne in the front passenger seat of the Mazda was 74 year old James Herbert. Mr. Herbert had met Mr. Browne at the Waterfront and requested a lift home.

2 Lover's Lane is a long, straight stretch of road in Plymouth. It is probably the only public road in Montserrat on which one can drive at a fast rate for any sustained period of time. Back in 1991, when Plymouth was a bustling town with no volcanic threat, Lover's Lane was a very busy road. As the two men were motoring along, a vehicle driven by Darren Roache approached them from a southerly direction. Mr. Roache was driving a four wheel drive pick-up owned by his employers, the Montserrat Electricity Services (MONLEC). He was returning to the MONLEC premises. Those premises are situated within the Public Works compound to the east of Lover's Lane, that is on Mr. Browne's left. It was therefore necessary for Mr. Roache to make a right turn across on-coming traffic at some paint.

3 These two vehicles, the Mazda motorcar and the MONLEC pick-up, then became involved in an awful collision as a result of which bath of them were wrecked and the Mazda's occupants suffered injuries. This suit is concerned with that collision.

CLAIMS MADE

4 Each of the drivers blamed the other for the accident. The police prosecuted Mr. Roache for dangerous driving. He was tried before the magistrate. On the 20th March 1992 he was convicted of driving without due care and attention contrary to section 55 of the Vehicles and Road Traffic Ordinance, 1959.

5 Mr. Browne and Mr. Herbert filed this suit in June, 1994. They claim against Mr. Roache and MONLEC for damages for Negligence. The Defendants deny the allegations of negligence. MONLEC counterclaimed for the value of their lost pick-up. This counterclaim was however withdrawn just before the close of the Defendants' case.

RELEVANCE OF CONVICTION IN THE MAGISTRATE'S COURT

6 The plaintiffs, in their Statement of Claim, pleaded Mr. Roaches conviction in the Magistrate's Court and sought to rely on that conviction as proof of his negligence.

7 Prior to 1968 in England, such a plea was entirely irrelevant. It used to be the rule (propounded by Hollington v. Hewthorn [1943] K.B. 587) that evidence of conviction for a motoring offence was inadmissible in subsequent civil proceedings. In England, section 11 of the Civil Evidence Act, 1968 abolished that rule. As a consequence of that abolition, a conviction there has the effect of shifting both the evidential and legal burden. In England now, a person convicted for careless driving, for example, has the onus throughout the civil trial of proving on a balance of probabilities that he, was not in fact negligent. See Stupple v. Royal Insurance Co. Ltd. [1970] 1 QB 50.

8 In his closing address Counsel for the Plaintiffs submitted that by virtue of a section in the West Indies Associated States Supreme Court (Montserrat) Ordinance No. 1 of 1968, this court can and should apply section 11 of the Civil Evidence Act. The relevant section of Ordinance No. 1 of 1968 (coincidentally, also section 11.) states:

“The jurisdiction vested in the High Court in Civil proceedings … shall be exercised in accordance with the provisions of this Ordinance and any other law in operation in Montserrat and rules of court, and where no special provision is therein contained such jurisdiction shall be exercised as nearly as may be in conformity with the law and practice administered for the tune being in the High Court of Justice in England”.

9 Mr. Brandt submitted that “law” in line 7 above included statute law and as such the English Civil Evidence Act, 1968 should be applied here. I do not share this view. This section speaks to the manner in which the jurisdiction of the High Court is to be exercised. It seems to me that “law” referred to there must be taken to mean procedural law as distinct from substantive law.

10 The Civil Evidence Act 1968 is a part of the substantive law of England. Montserrat has its own Evidence Ordinance, Cap. 25. If the local legislature should find that the latter statute is deficient then it is open to it to make the necessary amendment. In my view the rule in Hollington v. Hewthorn (1943) K.B. 587 is still alive and well in Montserrat. In determining the instant case therefore I completely disregard the fact of Mr. Roaches previous conviction before the learned Magistrate and hold that Messrs. Roache and Herbert have the burden of establishing Mr. Roaches negligence on a preponderance of probabilities.

THE COLLISION

11 Each of the plaintiffs testified regarding the cause of the accident. It was not disputed that at the material time there was no other traffic on Lover's Lane. Significantly, Mr. Browne was not asked nor did he volunteer to this court the approximate rate of speed at which he was driving that afternoon. He said that the accident occurred in this way. As he was going northward he saw the pick-up turn from the western side of the road and come onto his (eastern) side of the road. He slammed on his brakes but the vehicles still collided. According to him, the pick-up gave no indication that its driver intended to make a right turn. Immediately after the accident, Mr. Roache came to him in his car and said to him that he, Mr. Roache, did not see Mr. Browne on the road at all.

12 Mr. Browne had a brake impression indicating that from about 62 ft. away he had been applying his brakes in an unsuccessful attempt to stop before colliding with the pick-up.

13 Mr. Herbert, Browne's front seat passenger, gave in evidence that he saw the pick-up about fifty yards away. It attracted his attention because it was travelling towards them at a very fast rate. The pick-up showed no sign of making a right turn. At the Public Works gate the pick-up suddenly turned towards the on-coming Mazda, There was a loud squeal of brakes and then, within a split moment, there was the terrible impact. Mr. Herbert denied that Mr. Browne was speeding.

14 Mr. Roaches testimony was that he was going in a northerly direction along Lover's Lane. As he passed the entrance to the Industrial Site he signalled his intention to turn into the Public Works compound. He reduced his speed. He saw no other vehicle on the road and so he began to make the right turn into the compound. He was actually across the road almost into the entrance of the Public Works when he heard the screech of tyres and saw the Mazda rush up and collide with him. The impact turned his pick-up, a heavier vehicle, right around so that it was facing southwards. As far as he was concerned the accident occurred solely because of the great speed at which Mr. Browne was driving.

15 The police officer who took measurements at the scene was one, Sgt. Paget Edwards. He did not testify before this court. He did however give evidence in the Magistrate's court. His evidence there, together with all the other evidence presented to the learned Magistrate, was tendered by consent in this matter.

16 Taking into account all the evidence before me, I find it unlikely that Mr. Roache would have indicated his intention to turn right when he would not have seen any other traffic on the road. I find that he was negligent in failing to ensure that the traffic was clear before attempting to turn into the Public Works gate. In conditions of good visibility he gave this court no plausible explanation for being unable to see the Mazda before it was too late. His proper course of action, along an admittedly busy road, should have been to proceed on the western lane up to the point where he desired to make the right turn, stop or slow right down, and quickly proceed across the road after carefully ensuring that there was no traffic bearing down on him from the north or attempting to overtake him from the south. He obviously failed so to do.

17 Counsel for the defendant urged that the Plaintiffs were contributorily negligent in that they failed to wear their seat belts. Had they worn them, Counsel submitted, their injuries would have been negligible or substantially less. Counsel also argued that Mr. Browne must have been driving at an excessive speed and thus was contributorily negligent.

SEAT BELTS

18 It was admitted that Mr. Browne's Mazda was equipped with functioning seat belts at the time of the accident. Neither Mr. Browne nor Mr. Herbert was wearing a seat belt.

19 Counsel for the plaintiffs submitted that there is no law in Montserrat requiring motorists or their passengers to wear security belts. It is not the norm to wear them. In fact, he stated, it is quite unusual for them to be worn. On this basis, he reasoned, one ought not to be held contributorily negligent for failing to use them.

20 The plaintiffs were fully aware of the wisdom in wearing seat belts. Mr. Browne knew that his car...